New conflict on RU-486 abortions

Posted Thu, October 31st, 2013 11:17 pm by Lyle Denniston

The Fifth Circuit Court, setting up a new conflict on an issue of abortion law that the Supreme Court will soon face, ruled Thursday evening that doctors in Texas may not use during the first seven weeks of pregnancy the most widely adopted form of ending pregnancies with drugs rather than surgery. In a temporary ruling while an appeal proceeds, a three-judge panel allowed a key part of a new Texas abortion law to go into effect immediately to limit how doctors use the abortion-inducing drug RU-486 and related drugs.

That ruling conflicts directly with a decision by the Oklahoma Supreme Court on Tuesday that it would be unconstitutional to bar doctors from using the simpler and less expensive method of medical abortions throughout the first nine weeks of pregnancy. The Oklahoma court ruling was filed with the Supreme Court Tuesday night, responding to questions that the Justices had raised last June in agreeing to hear a case on the constitutionality of a 2011 abortion-regulating law in Oklahoma.

Arguments in both the Texas and Oklahoma cases focus on the differences between two methods of inducing abortion with medications; one of the drugs involved in both approaches goes by the popular name RU-486. RU-486 is only used early in pregnancy. For some pregnant women, an abortion done by surgery is considered a more serious risk to health than one done with drugs. That has led doctors to turn to the medicine approach.

Under a method approved thirteen years ago by the U.S. Food and Drug Administration, a woman seeking an abortion involving RU-486 and another drug must see a doctor three times to complete the process of ending her pregnancy, must take larger doses of the drugs that make the cost higher, and may only follow this procedure in the first seven weeks of pregnancy after her last menstrual period.

Since the FDA decision, however, doctors have developed a new technique that uses one-third as much of the drugs, the second round of which the woman may take in her home rather than at a medical facility, and the method can be used up through the ninth week of pregnancy. It is less expensive because of the lower dosages. This is considered an “off-label” method because the FDA has not approved it formally, although it is common for the FDA not to block off-label uses of many drugs it has approved for use. More than ninety percent of medical abortions are now done, across the country, by this newer approach.

The Texas state law at issue in Thursday’s Fifth Circuit Court ruling would allow doctors to use only the FDA-approved method at any time during early pregnancy, and no later than in the seventh week. A federal district judge in Austin on Monday had allowed that part of the law to go into effect, but his orderwould allow doctors to use the newer method in situations between the seventh and ninth weeks of pregnancy where a doctor had concluded that the women’s health or life would be at risk if only a surgical abortion option were available.

The Fifth Circuit was critical of this “health exception,” but said the state of Texas had not yet made a legal case against it. Even so, it ruled that the judge in Austin had issued an order that did not explicitly limit the newer method to the time between the seventh and ninth weeks, and had allowed a doctor other than the one who performed the abortion to draw the medical conclusion that a medical abortion was medically necessary. Moreover, the Circuit Court found, the Austin judge had lifted other restrictions on what doctors must do in the process of performing a medical abortion.

The Circuit Court thus found that the judge’s order was “overly broad,” and ordered that only the FDA-approved method could be used through the seventh week of pregnancy, and it ordered into effect the other restrictions on doctors doing such abortions. Its order explicitly restricts the use of the newer method from the fiftieth to the sixty-third day of pregnancy. Before the fiftieth day, it said, the FDA-approved method is safe for women.

In a separate part of Thursday’s ruling, the Circuit Court temporarily overturned the part of the Austin judge’s order that blocked enforcement of a provision in the new Texas law that would have required any doctor performing an abortion in Texas to have professional privileges at a hospital no more than thirty miles away from the place where an abortion is to be performed. The doctors and clinics who perform abortions contended, in challenging this provision, that it would lead to the loss of access to abortion in one-third of the sites in the state. The Austin judge had found that provision to be an unconstitutional burden on women’s right to seek an abortion, but the Circuit Court allowed it to go into effect, concluding that the state of Texas had shown that the provision is likely to be upheld when the appeal is concluded.

The Circuit Court decided that it will go forward on an expedited schedule to consider the constitutionality of the hospital privileges and medical abortion issues in the case. It said a three-judge panel that is to rule on the merits of the constitutional issue would hold a hearing in January,.

The hospital privileges issue is not involved in the Oklahoma case now awaiting the Supreme Court’s consideration. That case is confined to the issue of state power to limit the use of the newer method of medical abortions. As of Thursday, the Justices had not yet indicated how they will proceed now that the Oklahoma court has answered the questions about the scope of that state’s law. The state court said the law was unconstitutional because it would outlaw all medical abortions, by any method. The Oklahoma case is Cline v. Oklahoma Coalition for Reproductive Justice (docket 12-1094).

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.